What happens if an employee claims workplace discrimination?

Published 13 Jun 2019

Employees may claim discrimination on a number of grounds, such as race, gender, age or religion. While the employee may provide you with an opportunity to resolve the matter internally, they also have the option to seek legal advice.

When is an organisation legally at fault?

Both federal and state anti-discrimination laws require that no employee is harassed or discriminated against on the basis of a personal attribute such as those above. It is down to the employer to ensure that those authorise to act on their behalf (such as the management team) adhere to these laws. If the employer does not take their obligation seriously, they may be liable for the behaviour of their employees. 

In some cases, the employer remains responsible if any of their employees are found to have discriminated against a colleague in what's known as vicarious liability. Only if the company can show that they took reasonable steps to prevent the discrimination does liability fall solely to the individual employee.

What should you do if an employee makes a formal complaint?

Initially, you should try to resolve the issue using your in-house grievance procedures. You must take the complaint seriously, and do all you can to solve the matter to ensure you are not found guilty of vicarious liability.

If the employee is not satisfied with your approach to resolving the issue, they can take their complaint to the ADB (Anti-Discrimination Board) or the AHRC (Australian Human Rights Commission). The ADB deals with complaints according to state laws, while the AHRC works at federal level. As a result, both handle complaints in different ways.

Both organisations begin with an attempt at conciliation, before proceeding to tribunal hearings or court. The ADB refers unresolved cases to the NCAT (NSW Civil and Administrative Tribunal), while the AHRC sends complaints to the FCC (Federal Circuit Court) or the FCA (Federal Court of Australia). 

How the case proceeds depends on the route your employee has taken. Key differences include:

  • Technicalities: You or your employee can represent your own case at the NCAT. Federal courts are governed by a complex system of rules best navigated by an experienced professional.
  • Maximum compensation amount: NCAT can demand compensation of up to $100,000. The federal courts have no upper limit and can also make any order it sees fit, such as reinstatement.
  • Legal expenses: Federal courts are more expensive, and can order whoever loses the case to pay the expenses of the opposing side.

Should you be concerned about discrimination in your workplace and the effect it may have on your business, contact the expert team at Malouf Solicitors for advice.

Please call us on 02 8833 2000 to speak with a lawyer

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